K-Mechanical Services, Inc.

114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD K-Mechanical Services, Inc. and Donald E. Arthur. Case 8-CA-21799 July 26, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On November 24, 1989, Administrative Law Judge Marvin Roth issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findmgs, 1 and conclusions, 2 and to adopt the recommended Order 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, K-Mecham- cal Services, Inc, Toledo, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order 'The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent claims that the judge erroneously found that Klorer was refernug to Arthur's April 26, 1989 layoff when he testified that Arthur had been laid off for poor work The Respondent contends that, while Arthur had been laid off on April 26 for unsatisfactory work, Klorer's testimony actually refers to Arthur's March 9, 1989 layoff Al- though we agree with the Respondent that Klorer's testimony apparently refers to the March 9 layoff, this does not affect the result in this case Member Devaney, in adopting the judge's conclusion that it is map- propnate to defer the 8(a)(3) allegation to the joint employer-union com- mittee's disposition of Arthur's grievance, relies on the judge's findings that the committee did not decide the merits of the grievance and that the contractual and unfair labor practice Issues were not factually paral- lel Further, in adopting the judge's conclusion that the Respondent's ter- mination of Arthur violated the Act, Member Devaney notes that no spe- cific exception was taken to the judge's alternative finding that Arthur acted in concert and with the participation of a fellow employee in com- plaining to management about overtime work 3 Consistent with the judge's findings that the Respondent violated Sec 8(aX3) and (1) by terminating Arthur on April 26, 1989, and by sub- sequently informing the Union that it did not want him back, backpay calculated from the date of Arthur's discharge until the Respondent no longer had work for him, and additionally Includes moneys Arthur would have earned dunng future employment with the Respondent had he been referred in a nondiscriminatory manner, according to the Union's normal referral procedures Charles Z Adamson, Esq , for the General Counsel Steven J Stanford, Esq , of Toledo, Ohio, for the Re- spondent 299 NLRB No 25 Donald E Arthur, of Toledo, Ohio, for the Charging Party DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge This case was heard at Toledo, Ohio, on September 21, 1989 1 The charge was filed on May 15 by Donald E Arthur The amended complaint, which issued on July 24, alleges that K-Mechanical Services, Inc (the Company or Respond- ent) violated Section 8(a)(1) and (3) of the National Labor Relations Act The gravamen of the complaint is that the Company allegedly terminated employee Arthur because of his union and concerted activities The Com- pany's answer denies the commission of the alleged unfair labor practices 2 All parties were afforded full op- portunity to participate, to present relevant evidence, to argue orally, and to file bnefs General Counsel and the Company each filed a bnef On the entire record in this case,3 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the bnefs and arguments of the parties, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, an Ohio corporation with an office and place of business in Toledo, Ohio, is engaged in the busi- ness of providing mechancial contracting services to commencal customers In the operation of its busmess, the Company annually provides services valued in excess of $50,000 to General Mills, Inc, an enterpnse which is engaged directly in interstate commerce within the meaning of the Act I find, as the Company admits, that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Local 50, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefittmg Industry of the United States and Canada, AFL-CIO, CLC (the Union) is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The Company, as a member of Mechanical Contrac- tors Association of Northwestern Ohio, Inc (Associa- tion), a multiemployer bargaining association, is a party to a collective-bargaining contract with the Union The current contract, commonly referred to as the "Blue 'All dates are for 1989 unless otherwise indicated 2 By its answer the Company raised three affirmative defenses I denied two at the outset of the hearing The third is addressed to the merits of the complaint (alleged failure to state a claim on which relief can be granted) The answer did not affirmatively allege that the complaint should be deferred to any contractual grievance or arbitration procedure 'The corrections in the transcript have been noted and corrected K-MECHANICAL SERVICES 115 Book," is effective by its terms from July 1, 1987, through June 30, 1990, and covers welders, fitters, and plumbers employed by the Company The Association and the Union are also signatories to the Toledo Mainte- nance Agreement (Addendum) which is an Addendum to the Blue Book covering repair, replacement, mainte- nance, and renovation work The Company is a succes- sor to Klorer-Willhardt, Inc , which from its inception in 1965 was party to a series of contracts with the Union 0 Steven Klorer was president and principal owner of Klorer-Willhardt, Inc from 1965 to 1982, and since April 22, 1987, has been company president Klorer is a "hands on" chief executive who is actively involved in his firm's day-to-day operations Donald Arthur has been a steamfitter welder and union member since about 1968 He is also a qualified plumber He served nearly all of his 5-year apprenticeship with Klorer-Willhardt, Inc Arthur subsequently worked for Klorer-Willhardt on two or three occasions Arthur was union president from De- cember 1985 to December 1988 He has not been on good terms with the present union leadership, having previously fought a pay increase for the present business manager Klorer was and continued to be of the opinion that Arthur was a slow worker with a propensity to waste time on the job Company Foreman Bob Pershing, a union member, also believed that Arthur did not work hard enough On December 28, 1988, the Union referred Arthur to the Company through the union hiring hall Under the contract, which provides for an exclusive re- ferral system, the Company had the right to reject Arthur or any other referred applicant However, the Company did not reject Arthur, who worked for the Company until March 9, when he was laid off for lack of work Klorer testified that he did not reject Arthur, or terminate him for unsatisfactory performance, because the Union might refer someone who was worse 4 There- fore Klorer followed a practice of keeping on the best performers as long as possible, even to the point of put- ting them on cleanup or other unskilled work, while laying off less productive employees like Arthur when the work force had to ,be reduced Klorer testified that on some 10 or 12 occasions he told Pershing that he was tried of Arthur goofing off, and that on 2 occasions he told Pershing to get rid of Arthur if he continued to goof off However, at no time prior to the week of April 24 did Klorer or any other company supervisor complain to Arthur or the Union about Arthur's work perform- ance Arthur usually was assigned to weld carbon steel During his stint from December 28 to March 9, he was assigned to weld stainless steel tanks Arthur testified that this was not his specialty, and he had difficulty in performing the work He complained to Klorer Klorer testified that in his opinion, stainless steel welding was easier than carbon steel welding, and Arthur took too long to perform the work The Company transferred 4 The Company repeatedly states in its brief that Arthur was laid off on March 9 for poor work performance, citing Tr 24 However, Klorer was at this point referring to Arthur's April 26 layoff, i e, the layof which is at issue in this case Thus Klorer testified that at this time he told the Union that he did not want Arthur back again Arthur testified without contradiction that Klorer's son, company official Gerald Klorer, told him on March 9 that he was laid off because of lack of work Arthur to another job, and on March 9 laid off Arthur for lack of work On March 23 the Union again referred Arthur to the Company Again, the Company did not reject him The Company does a substantial amount of work for General Mills, and may be working on more than one contract for General Mills at any given time The Asso- ciation and the Union have agreed that under their col- lective-bargaining agreements, each contract is viewed as a separate job Under the Blue Book, when unsheduled overtime occurs on a jobsite, priority must be given to unit employees working on the jobsite, and no employee can be brought from an outside jobsite to replace an em- ployee already worlcmg on the job for the sole purpose of working overtime However, under the Addendum, the employer has sole discretion to determine who will work overtime, although the employer must attempt to equalize overtime among employees whenever practical In April Arthur and his fitter, Joe Kaloszar, were work- ing on the "Top Gun" line at the General Mills facility On April 22 and 23 (Saturday and Sunday) the Company assigned overtime work under another contract with General Mills The Company did not ask Arthur or Ka- loszar to work on those days When Arthur and Kalos- zar arrived at work on Monday, April 24, they learned about the weekend overtime Arthur asked union stew- ard Bill Peacock to check into the matter However, shortly thereafter Peacock was summoned off the job on an unrelated matter Later, as Arthur was cutting rod, he saw Klorer Arthur asked why he and Kaloszar were not offered the overtime work Klorer answered that they did not show enough enthusiasm on the job, and that Arthur did not work fast enough Klorer said that he had the nght to decide who would work overtime (meaning under the Addendum) Arthur suppressed his anger and went back to work As indicated, this was the first time that the Company told Arthur that his work was less satisfactory Later that day, the Manpower Practices Committee, comprised of union and employer representatives, met in accordance with their usual prac- tice to discuss problems, i e, in order to resolve such problems before they ripened into grievances Klorer told the comnuttee that he had enough of Arthur's poor work performance, described how Arthur sat down on the floor of an aisleway to attach a nut to a rod, and said that Arthur "would be laid off in the near future" Klorer added that Arthur did not work overtime the previous weekend, and the committee "would most likely be receiving a grievance because of that" (In a po- sition letter to the Board's Regional Office, Klorer stated that this meeting took place on April 20 However, in light of the testimony of Association Executive Vice President Ronald Cook, who was presented as a compa- ny witness, it is evident that the meeting took place on April 24, after Arthur complained to Klorer ) The next day (Tuesday, April 25) while at work, Arthur asked Foreman Pershing whether Pershing ever said that Arthur was not working hard enough Pershing an- swered that he did not Arthur asked if Pershing would testify at his grievance (Arthur anticipated that he would file a grievance) Pershing said that Arthur might not 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD want him, because Pershing thought that Arthur did not work hard enough That evening, after work, Arthur went to the union hall and talked to Business Manager Dave LaPlante about a grievance over the Company's failure to offer him the weekend overtime work La- Plante referred the matter to Union Business Agent Bob Lynn, who made an appointment to see Klorer On Apnl 26, at about 1 30 p m, Lynn met with Klorer m the Gen- eral Mills parking lot, while Arthur was at work Lynn testified in sum as follows He said that Arthur com- plained about not working overtime on the weekend Klorer answered that the overtime was on a different job, and there was no contract violation Lynn referred to the Blue Book Klorer said that the job was covered by the Addendum Lynn asked if there was any way to resolve the complaint Klorer answered "not really" Lynn responded that therefore Arthur would probably file a grievance, and the Union had a duty to represent him Klorer said that Arthur would do what he had to Lynn said that he was just gathering the facts, Klorer said nothing about laying off Arthur Klorer testified in sum about the conversation as follows Lynn said he came to try to solve the problem about Arthur not get- ting the overtime Klorer said there was no problem Lynn suggested that there was a contract violation Klorer asked Lynn to explain the alleged violation When Lynn referred to the Blue Book, Klorer responded that he was pointing to the wrong contract, and that in any event the overtime was on a different job Lynn said he was just there to collect the facts Klorer asked if Arthur filed anything against him Lynn answered that they were Just talking now Lynn did not say that Arthur would probably file a grievance Klorer said he was tired of watching Arthur walking around, and "I'm going to lay him off today" I credit Lynn As indicated, Klorer falsely stated in his position letter that he told the union representatives on April 20 that he would lay off Arthur Klorer also displayed a tendency to be argumen- tative and evasive when testifying about a significant matter Thus, after equivocating, Klorer admitted that the stainless steel incident occurred during Arthur's first stint of employment (December 29 to March 9) I have no comparable reservations with respect to Lynn's testi- mony For reasons which will be discussed, my ultimate findings in this case would be the same even if I credited Klorer's version of the conversation About 1 hour after the meeting between Lynn and Klorer, Foreman Pershing told Arthur that he would be laid off At about 3 30 p m Klorer told Arthur that he was laid off Klorer testified that he told Arthur that he was laid off because of his work habits Arthur initially testified that Kloerer said he was laid off because Klorer did not like his attitude on the job, but subsequently tes- tified that Klorer simply said that he did not like Ar- thur's attitude, without referring to the job In light of Arthur's contradictory testimony, and General Counsel's failure to call Steward Peacock, who was present at the layoff, I credit Rlorer in this regard Klorer subsequently informed the Union that he did not want Arthur back Klorer never claimed that there was no work for Arthur, and in fact there was work on the job The Company did not lay off fitter Kaloszar Between April 26 and the present hearing the Union referred five welders to the Company for work at General Mills (upon returning to the union hall, Arthur signed the welder out-of-work list) Klorer testified with respect to Arthur's layoff as follows No, I was not angry with Arthur for causing that problem, because I had no reason I've been in this business, and I have these problems all the time, and we solve them There is no problem What I was angry with Arthur about is not producing, and I pay these guys big money, and I'm on contract, and it ain't just a give away, and I was angry with Arthur for instead of doing his work even bothering me with this This is something he should have gone to the stew- ard He shouldn't even come to me, but it was a way of not working, and I'm after—I pay them a dollar, I want a dollar in return That's—I was not angry at Arthur for whatever you want to call if for not working—or for questiomng me I just made a state- ment, and let's go back to work That's what he was hired for [Emphasis added ] In sum, Klorer asserted that by "bothering" him about not getting overtime work, Arthur was "not working" In his position letter to the Regional Office, Klorer de- scribed Arthur's alleged poor work habits, but empha- sized Arthur's reputation as a "back-yard lawyer" In the first two substantive paragraphs of his letter Klorer stated as follows Mr Arthur is a man who has spent many years studying union contracts, work rules, procedures, and he invariably interprets them all to his benefit He is what we in the area would call a back-yard lawyer Mr Arthur lacks the best work habits and he makes it very difficult for a contractor to complete a job within budget Mr Arthur has a reputation for questioning orders and if a contractor orders him to do an unpleasant task or discharges him, he has a history of causing some kind of trouble and this has resulted in contractors being very uncom- fortable in employing him This is reflected in his work record which shows the number of jobs he has in a year's time and which is sufficient to tell the story Arthur filed a grievance alleging tht the Company (1) violated the contract by not offenng overtime work to himself and others, (2) slandered and maligned him at the Manpower Practices Committee meeting on April 24, and (3), discharged him because of inquiries into the situ- ation and the filing of this grievance The grievance was processed to the third step, consisting of a hearing on May 11 before a Joint subcommittee comprising two em- ployers and two union representatives At the outset of the hearing Arthur withdrew the first and second allega- tions (The Union and Association were in agreement that the Company had a contractual right to fail or refuse to offer the overtime work to Arthur and Kalos- zar ) Arthur asserted that he was terminated in violation of the nondiscrimination clause of the contract (art XII) K-MECHANICAL SERVICES 117 This clause prohibits discrimination because of race, reli- gion, sex, handicap, or national origin, but does not pro- hibit any other kind of discrimination The subcommittee unanimously concluded that there was no violation of the contract Their decision constituted the final disposi- tion of Arthur's grievance B Analysis and Concluding Findings 1 The deferral question As indicated, the Company did not allege in its answer that the Board should defer the matter of Arthurs' layoff to the disposition of the joint subcommittee However, General Counsel injected that issue into the hearing by introducing evidence which was intended to demonstrate that he disposition failed to meet the Board's standards for deferral When I so indicated, the Company asserted that it mtended to raise deferral as an issue, and General Counsel did not object I find that the question of defer- ral was fully and fairly litigated, and therefore is an issue in this case A "material issue which has been fairly tried by the parties should be decided by the Board regardless of whether it has been specifically pleaded" American Boiler Mfrs Assn v NLRB, 366 F 2d 815, 821 (8th Cir 1966) Therefore, I reject General Counsel's argument (Br 19) that the Company's assertion is untimely I also find without merit General Counsel's argument that the standards of Olin Corp, 268 NLRB 573 (1984), and Spiel- berg Mfg Co, 112 NLRB 1080 (1955), are inapplicable to the present case because the joint subcommittee disposi- tion "was not the same as final and bmdmg arbitration" (Br 20) As the Company points out in its brief, the Board has applied the standards of Olin and Speilberg to determinations by joint employer-union committees The Blue Book refers to majority decisions of the joint sub- committee as designating "a settlement of the dispute binding upon both parties involved," i e, a final disposi- tion of the grievance Although the Blue Book refers to such dispositions as designatmg a settlement, the subcom- mittee disposition here involved was substantially identi- cal in form to joint employer-union determinations to which the Board has applied Olin and Spielberg Under Olin and Spielberg, the Board will defer to an arbitration award, including as here a joint employer- union committee disposition, when the following condi- tions are present (1) the proceedings appear to have been fair and regular, (2) all parties had agreed to be bound, (3) the contractual issue is factually parallel to the unfair labor practice issue, (4) the arbitrator was pre- sented generally with the facts relevant to resolving the unfair labor practice, and (5) the decision of the arbitra- tion panel is not clearly repugnant to the purposes and policies of the Act By "clearly repugnant," the Board means that the "arbitrator's decision is not susceptible to an interpretation consistent with the Act" (Olin, 268 NLRB at 574) I find that the joint subcommittee disposi- tion fails to meet the third and fifth criteria, and there- fore that deferral is mappropnate The joint committee never decided the merits of Arthur's grievance Rather the joint subcommittee simply determined that even if Arthur's contentions were true, his layoff would not con- stitute a violation of the nondiscrimination clause on which Arthur relied In sum, the joint subcommittee con- cluded that the clause does not prohibit a signatory em- ployer from discriminating agamt an employee because of the employee's union activity The subcommittee did not consider either the questions of whether the Compa- ny laid off Arthur because of poor work performance or because he sought to invoke alleged contract rights Therefore, the contractual issue was not factually paral- lel to the unfair labor practice issue Moreover, by con- cluding that the contract clause in question did not pro- hibit the Company from laying off Arthur because of his union or concerted activities, the joint committee reached a result which was clearly repugnant to the pur- poses and policies of the Act Therefore, I shall proceed to decide the merits of this case 2 The merits I find that Klorer terminated Arthur because he antici- pated that Arthur would file a grievance over the Com- pany's failure to assign overtime work to Arthur and Ka- loszar First, Klorer's own prior course of conduct toward Arthur, coupled with the timing of Arthur's layoff, demonstrates a discriminatory motive Klorer had known Arthur for many years, and Arthur had worked on and off for the Company and its predecessor over a long period of time Klorer was familiar with Arthur's work performance, and had long regarded Arthur as a comparatively unproductive worker Klorer had a con- tractual right to refuse to accept Arthur, and could at any time have informed the Union not to refer Arthur Nevertheless, Klorer did not, until the events which gave rise to this case, reject Arthur as an employee or even complain to Arthur or the Union about his work performance The Company accepted the Union's refer- ral of Arthur on December 28, 1988, and kept him on until March 9, when Arthur complained that he was having difficulty welding stainless steel, Klorer simply assigned him to another job instead of laying him off, even though Klorer believed that Arthur was malinger- ing On March 23, only 2 weeks after laying him off, the Company again hired Arthur, and kept him on the job for over a month, although there was no indication that Arthur's work performance and improved However, on the same day that Arthur complained to Klorer about he and Kaloszar not getting the weekend overtime work, Klorer informed the Union about the complaint, indicat- ed that he anticipated a grievance, complained for the first time about Arthur's work performance, and warned that Arthur would be laid off in the near future Klorer's statements plainly constituted a threat that if the Union or Arthur chose to pursue a grievance, Arthur would be laid off That is precisely what happened On April 26, Business Agent Lynn told Klorer that Arthur would probably file a grievance and the Union would represent him Klorer immediately laid off Arthur, although there was still work for him to perform Second, discimmatory motive was further demonstrated by Klorer's animus toward Arthur's pursuit of the grievance, including a vir- tual admission that Arthur was laid off for this reason As discussed, Klorer demonstrated this animus in his tes- timony and position letter to the Board Klorer frankly 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD admitted in his testimony that he regarded Arthur's com- plaint as "a way of not working," i e, as grounds for laying off Arthur By reason of these factors, General Counsel presented a prima facie case that the Company terminated Arthur because of his complaint and conse- quently indicated intent to file a grievance For the same reaons, I find that the Company's assertion that it termi- nated Arthur because of poor work performance was pretextual Therefore, the Company failed to meet its burden of establishing that it would have terminated Arthur in the absence of such activity Arthur's com- plaint about overtime and his efforts in pursuit of that complaint constituted union and protected concerted ac- tivity under the Act Arthur invoked the Blue Book in the honest and reasonable, although mistaken belief, that he, Kaloszar and possibly other employees on their job, had had a contractual right to be offered the weekend overtime work in preference to employees brought in from other jobs At the time Arthur did not know the full facts, i e, that his job was covered by the Adden- dum, and the overtime involved a different job Klorer made no effort to enlighten him, but instead retaliated against Arthur See NLRB v City Disposal Systems, 465 U S 822 (1984), Pennsylvania Electric Co, 289 NLRB 1200 (1988) Moreover, as Arthur acted in concert and participation with his fitter Kaloszar, his complaint to Klorer would be protected under Section 7 even if Arthur did not invoke an arguable contract nght or gnevance procedure Therefore, the Company violated Section 8(a)(1) and (3) of the Act by terminating Arthur CONCLUSIONS OF LAW 1 The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By discnmmatmg in regard to the tenure of employ- ment of Donald Arthur, thereby discouraging member- ship in the Union, the Company has engaged, and is en- gaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4 By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, the Company has engaged, and is en- gaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Company discriminatorily ter- minated Donald Arthur, It will be recommended that the Company be ordered to offer him immediate and full re- instatement to his former job, or if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and benefits that he may have suffered from the time of his layoff to the date of the Company's offer of reinstatement For the purpose of calculating backpay, it is determined that in the absence of the discrimination against him, Arthur would have worked for the Company until there was no longer any work for him, and would have been referred by the Union for employment in a nondiscriminatory manner in accordance with the Union's usual referral procedure I shall further recommend that the Company be ordered to remove from its records any reference to the unlawful termination of Arthur, to give written notice to the Union that it has no objection to referral of Arthur for employment, to inform Arthur in writing of such ex- punction and notice, and to inform him that its unlawful conduct will not be used as a basis for further personnel actions against him Backpay shall be computed in ac- cordance with the formula approved in F W Woolworth Co, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 5 It will also be recommended that the Company be re- quired to preserve and make available to the Board, or its agents, on request, payroll and other records to facili- tate the computation of backpay due On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, K-Mechanical Services, Inc , Toledo, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in Local 50, United As- sociation of Journeymen and Apprentices of the Plumb- ing and Pipefittmg Industry of the United States and Canada, AFL-CIO, CLC or any other labor organiza- tion by discnminatonly laying off, terminating, or refus- ing to accept referrals of employees, or in any other manner discriminating against employees with regard to their hire or tenure of employment or any term or condi- tion of employment (b) In any like or related manner interfering with, re- straining, or coercing employee in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Donald Arthur immediate and full reinstate- ment to his former job or, if such job no longer exits, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously en- joyed, and make him whole for losses he suffered by 5 Under New Horizons, interest on and after January 1, 1987 is comput- ed at the "short-term Federal rate' for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ' K:MECHANICAL SERVICES '119 reason of the discrimination against him as set forth in the remedy section of this decision (b) Remove from its files any reference to the unlawful termination of Donald Arthur, give written notice to the Union that it has no objection to referral of Arthur for employment, and notify Arthur in writing that this has been done and that evidence of the unlawful conduct will not be used as a basis for future personnel actions against him (c) Preserve and, request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records neces- sary to analyze the amount of backpay due (d) Post at its Toledo, Ohio office and place of busi- ness, copies of the attached notice marked "Appendix " Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court Of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discourage membership in Local 50, United Association of Journeymen and Apprentices of the Plumbing and Pipefittmg Industry of the United States and Canada, AFL-CIO, CLC or any other labor organization, by discnmmatonly laying off, terminating, or refusmg to accept referrals of employees, or in any other manner discnmmatmg against employees with regard to their hire or tenure of employment or any terms of condition of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to engage in union or concerted activities, or to refrain therefrom WE WILL offer Donald Arthur immediate and full re- instatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prej- udice ro his seniority or other rights and privileges pre- viously enjoyed, and make him whole for losses he suf- fered by reason of the discrimination against him, with interest WE WILL remove from our files any references to the unlawful termination of Donald Arthur, give written notice to Local 50 that we have no objection to referral of Donald Arthur for employment, and notify him in writing that this has been done and that evidence of the unlawful conduct will not be used as a basis for future personnel actions against him K-MECHANICAL SERVICES, INC